National Distillers Products Corp.

National Labor Relations Board - Board Decisions

Jul 14, 1945

62 N.L.R.B. 1299 (N.L.R.B. 1945)

In the Matter of NATIONAL DISTILLERS PRODUCTS CORPORATION and LOCAL
22, DISTILLERY, RECTIFYING AND WINE WORKERS' INTERNATIONAL
UNION, A. F. of L.
Case No. 5-R-1867.-Decided July 14, 1945
Mr. Morris A. Edelman, of New York City, for the Company.
Mr. Mort Brandenburg, of New York City. and Mr. Sylvester Calabro,
of Baltimore , Md., for the AFL.
Mr. Frank J. Bender, of Baltimore, Md ., for the CIO.
Mr. Stanley B. Korengold, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local 22, Distillery, Rectifying and Wine
Workers'-International Union, A. F. of L., herein called the AFL, alleg-
ing that a question affecting commerce had arisen concerning the represen-
tation of employees of National Distillers Products Corporation, Dundalk,
Maryland, herein called the Company,' the National Labor Relations
Board provided for an appropriate hearing upon due notice before Earle K
Shawe, Trial Examiner. Said hearing was held at Baltimore, Maryland,
on May 2, 1945. The Company, the AFL, and the United Distillery Work-
ers' Local Union No. 1084, C. I. 0., herein called the CIO, appeared and
participated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence hearing
on the issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were afforded an
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
1 At the hearing, the Company' s name was amended to read as set forth in the caption and body
of the decision
62 N L. R. B., No. 176.
1299
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Distillers Products Corporation, a Virginia corporation, is
engaged in the manufacture and distribution of wines, alcoholic beverages,
and other alcoholic products. The Company owns and operates numerous
plants located in the various States of the United States. We are here
concerned with its Mount Vernon Plant No 2 at Dundalk. Maryland,
which is engaged in the manufacture of alcohol In connection with its
operations at this plant, the Company annually purchases grain and other
raw materials valued in excess of $100,000, all of which is shipped to the
plant from points outside the State of Maryland. The plant's entire output
of low proof alcohol, valued in excess of $200,000 annually, is sold within
the State of Maryland to the United States Industrial Chemical Company,
which in turn sells it to the United States Government. Over 50 percent
of this alcohol is shipped to points outside the State of Maryland.
For the purposes of this proceeding, the Company admits that it is
engaged in commerce within the meaning of the National Labor Rela-
tions Act.
H. THE ORGANIZATIONS INVOLVED
Local 22, Distillery, Rectifying and Wine Workers' International Union,
affiliated with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company. ,
United Distillery Workers' Local Union No. 1084, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
III THE QUESTION CONCERNING REPRESENTATION
As the result of a consent election conducted under Board auspices, the
CIO was designated on April 11, 1941, as the bargaining representative of
the employees here involved. At that time and until December 1944, the
Mount Vernon Plant No. 2 was owned and operated by the Baltimore
Pure Rye Distilling Company, the Company's predecessor. In April 1941,
the CIO and the Baltimore Pure Rye Distilling Company executed a
2-year bargaining contract which was renewed on April 26, 1943, for
another 2-year period. The contract stated that it would be effective for 2
years from the date of its execution and that the parties agreed to "com-
nmence negotiations on extension to this agreement not less than 60 days
prior to the termination thereof " In December 1944, when the Company
took over the plant, it agreed to abide by the contract already in effect.
The record shows that the terms and conditions of the contract were there-
after honored by the parties. On February 21, 1945, the CIO wrote the
NATIONAL DISTILLERS PRODUCTS CORPORATION 1301
Company that it desired to commence negotiations for a new contract.
On March 5, 1945, the AFL notified the Company that it was filing a
petition with the Board requesting certification in an appropriate milt
On April 9, 1945, the Company informed the CIO that it was deferring
the negotiation of a new contract until after the Board has certified the
proper bargaining representative. At the date of the hearing, May 2, 1945,
the contract between the Company and the CIO had already expired and
a new contract had not as yet been executed
The CIO contends that, although the contract has formally expired,
the parties are still operating under it and the contract should therefore
operate as a bar to an election at this time. We find no merit in this conten-
tion. The CIO is arguing, in substance, that its contract remains operative
past the stated expiration date and until a new contract is executed. Even
were we to assume the validity of this argument, the contract would have
thereby become one of indefinite duration, and, as such, would not, under
well established principles of the Board, bar a present determination of
representatives.' Accordingly, since the contract between the CIO and the
Company has expired and since the AFL asserted its claim before any
new written contract between the Company and the CIO had been con-
summated, we find that neither the expired contract nor any arrangements
made between the Company and the CIO for the indefinite extension of
the contract bars a present determination of representatives.
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the AFL represents a substantial number of employees in
the unit hereinafter found appropriate'
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company, the CIO, and the AFL are agreed that the appropriate
bargaining unit should consist of all production and maintenance employ-
ees including working foremen, but excluding office employees, chemists,
laboratory assistants , chief engineer, foremen, foreladies, and all other
supervisory employees. The agreed unit is susbtantially the same as the
unit covered by the 1941 and 1943 contracts mentioned above.
The Company would also exclude plant guards and nurses from the
,bargaining unit. The record, however, indicates that the Company does
oSee Matter of Lockheed Aircraft Co,poration , 58 N L R B 1188 , Matter of Daniel Burk-
ha,tsmie, , Cooperage Co„ 49 N L R. B 428, Matter of Eicor, Inc, 46 N L R B 1035
3 The Field Examiner repotted that the AFL submitted 75 authorization cards, that 69 of these
cards bore the names of persons appearing on the Company ' s March 11 , 1945 , pay roll, and that
of these 69 cards, 47 were dated February 1945, 16 were dated March 1945 , and 6 were undated,
and that there are 132 employees in the alleged appropriate unit
The CIO relies upon a contract with the Company to show its interest
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not presently employ plant guards' or nurses. Consistently with our practice
in such cases , we shall not provide for their exclusion or inclusion at this
time.`
We find, in substantial agreement with the parties and in accordance
with our foregoing determination, that all production and maintenance
employees at the Company's Mount Vernon Plant No. 2, including janitors'
and the employees enumerated in Appendix A attached hereto, but exclud-
ing office employees, chemists, laboratory assistants, chief engineer, fore-
men, foreladies, and all other supervisory employees' with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among the employees in
the appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein, subject
to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with National Distillers Products
Corporation, Dundalk, Maryland, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from the
date of this Direction, under the direction and supervision of the Regional
Director for the Fifth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Sections 10 and 11,
of said Rules and Regulations, among the employees in the unit found
' Such plant protection as the Company now has is provided by the Pinkerton Detective Agency
and the plant guards so engaged are on the latter 's pay roll . The parties agree that these guards
are not involved in this proceeding.
See Matter of Springfield , Massachusetts, Plant of the Baldwin Duckworth Division of Chain
Belt Company, 57 N. L. R. B. 1369.
6 While the Company would exclude the janitors and janitresses that work in the office, we find
no cogent reason to distinguish them from other maintenance employees . Accordingly , we shall
include all janitors and janitresses , whether working in the plant or the office , in the appropriate
bargaining unit
r This includes the superintendent of the plant , the foreman of the warehouse and yard depart-
ment, the bottling house foreman, the shipping department foreman , the dry house foreman, the
bottling house forelady, distillery foreman, and night distillery foreman.
NATIONAL DISTILLERS PRODUCTS CORPORATION 1303
appropriate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including employ-
ees who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be represented by Local 22,
Distillery, Rectifying and Wine Workers' International Union, A. F. of L:,
or by United Distillery Workers' Local Union No. 1084, C. I. 0., for the
purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above Deci-
sion and Direction of Election.
Department
Grain Elevator
Mill
Mashing
Yeasting
Fermenting
Distilling
Dry House
Cistern 'Room
Warehousing
APPENDIX A
Coopering
Dumping, Reducing and Blending
Bottling-male
Bottling-female
Power and heat
Yard and General
Classification
Grain unloaders
Working foreman
Millers
Mash men
Yeast operators
Fermentor operators
Still operators
Operators
Sackers
Working foreman
Working foremen
General helpers
Coopers
Working foremen
General helpers
General helpers
Line operators
Janitress
Engineers
Working foreman
General helpers
Watchman
Mechanical maintenance Utility men
Utility helpers
Shipping Assistant shipping clerk
General helpers
Trucking Drivers